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Relocating with the children

A particularly vexed question in family law cases is whether a separated parent can relocate, taking the children with them.

There is nothing illegal about a parent relocating with the children, if there are no current orders in place that would have the effect of preventing that occurring.

However, if a parent unilaterally chooses to relocate against the wishes of the other parent, then often applications are made to the family courts seeking orders that both the relocating parent and the children return pending the court conducting a full hearing into whether relocation should be allowed.

These sorts of cases are fairly common in the family courts.  In one recent reported decision, a mother unilaterally relocated about 150km away from the father, against the father’s wishes, taking the couple’s seven year old daughter with her. The father made an urgent application to the court to force her to return.

In support of her position, the mother said:

  • She couldn’t afford to rent a house where she had been living
  • She had signed a lease for a house where she had moved to
  • The father refused to even discuss the issue with her, so she felt she had no choice.

The court was not convinced by the mother.  It held that the evidence presented by the mother to the court did not show that she had exhausted the possibilities of finding suitable rental accommodation where she had been. It held further that there was always the risk that the mother would have to breach her new lease given that she had moved without the father or the court’s consent. And finally, and perhaps most importantly, the court held:

“the issue of relocation is a matter in which the case law makes it very clear that it is a significant matter … It is not for one party to relocate and to unilaterally decide where a child is living. Relocation decisions are difficult decisions and they are best made after a considered hearing and hearing all of the evidence.”

There are many delicate legal and tactical decisions to make when considering relocation. They are best made in consultation with an experienced family lawyer.